In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the circumstances are such that an action at law will not give a complete remedy, equity may entertain jurisdiction.
(Orig. Code 1863, § 3065; Code 1868, § 3077; Code 1873, § 3132; Code 1882, § 3132; Civil Code 1895, § 3991; Civil Code 1910, § 4588; Code 1933, § 37-303.)
Cross references.- Right to contribution among joint trespassers, § 51-12-32.
Law reviews.- For note, "Contribution Among Joint Tortfeasors," see 12 Ga. L. Rev. 553 (1978).
JUDICIAL DECISIONS
When contribution can be granted as relief.
- Contribution cannot properly be granted as affirmative relief unless the party claiming such relief has been compelled to discharge a liability for which he and the other party were equally bound. Klausman v. Klausman, 186 Ga. App. 669, 368 S.E.2d 185, cert. denied, 186 Ga. App. 918, 368 S.E.2d 185 (1988).
Enforcement of execution to compel contribution from joint defendants.
- Joint defendants who have paid an execution against themselves and others, and procured a written transfer of it from the plaintiff in fi. fa., may enforce the execution against other defendants for contribution. Miller v. Perkerson, 128 Ga. 465, 57 S.E. 787 (1907).
An agreement between the parties may absolve one of them from any duty to contribute. Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S.E. 1015 (1893).
Relationship of joint tort-feasors required for right to contribution.
- In an action by tenants' insurers against suppliers of building materials for losses due to fire damage to the building, the suppliers did not have a right to contribution from the landlord since the tenants and the landlord had agreed in leases not to sue each other before for losses covered by insurance; thus, no cause of action by the insurers against the landlord ever arose and the landlord could not be a joint tort-feasor with the suppliers. Glazer v. Crescent Wallcoverings, Inc., 215 Ga. App. 492, 451 S.E.2d 509 (1994).
While the doctrine of contribution originated in courts of equity, it was subsequently adopted by courts of law and is now universally applied therein. In order to make the doctrine consistent with the forms, theories, and practices of courts of law, the fiction of an implied contract by one obligor to contribute to another co-obligor who had been compelled to pay the whole obligation was adopted. Watkins v. Woodbery, 148 Ga. 249, 96 S.E. 338 (1918); Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 117 S.E. 566 (1934); Black v. Davidson, 65 Ga. App. 780, 16 S.E.2d 525 (1941); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945); Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).
Actual assignment of the right to enforce contribution may be made. Hall v. Harris, 6 Ga. App. 822, 65 S.E. 1086 (1909).
Successive purchasers of a mortgagor's estate are not liable to contribution among themselves. Cumming v. Cumming, 3 Ga. 460 (1847).
Equitable relief to secure a waiver of homestead contained in a note paid by a joint obligor will be granted. Sherling v. Long, 122 Ga. 797, 50 S.E. 935 (1905).
There is no line of separation between the liability of joint tort-feasors.
- The tort is a thing integral and indivisible, and any claim for injuries arising therefrom runs through and embraces every part of the tort. The liability of one cannot be carried into any portion of the joint tort that is not followed by an equal liability of the other tort-feasor. Eidson v. Maddox, 195 Ga. 641, 24 S.E.2d 895 (1943).
Petition must allege that the debt has been paid. Huey v. Stewart, 69 Ga. 768 (1882).
Petition does not lie in the mouth of petitioner to claim contribution when it has paid nothing upon the alleged joint obligation. Autry v. Southern Ry., 167 Ga. 136, 144 S.E. 741 (1928).
However, it is unnecessary to show that a common debt has been paid in full either by the plaintiff or by any other person. In some decisions there are expressions which might imply that the whole debt must be paid before an action for contribution will lie, but such was not the rule at common law, nor is there any such requirement under this Code. Herrington v. Wimberly, 177 Ga. 536, 170 S.E. 670 (1933).
Prerequisite to contribution.
- Before one is entitled to contribution as an affirmative remedy, he must show not only a common liability, but payment by him of more than his share. Snyder v. Elkan, 187 Ga. 164, 199 S.E. 891 (1938).
Trial court properly granted partial summary judgment to the former business partners on the separate entity partners' counterclaim that the separate entity partners were owed money due to the former business partners' alleged failure to pay their share of a settlement agreement entered into after a franchiser filed separate suits seeking unpaid royalties; nothing of record showed that either of the separate entity partners paid any portion of the settlement and, in fact, the record showed that the corporation formed by the former business partners and the separate entity partners paid it. Carter v. Parish, 274 Ga. App. 97, 616 S.E.2d 877 (2005).
When right to contribution arises.
- When a principal obligor with his own funds pays a joint debt due by him and a coprincipal, the right of the former upon the implied contract of the latter to bear his share of the common burden arises when the one paying the joint debt extinguishes the debt of their common debtor. Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 177 S.E. 566 (1934).
Debtor established that a defendant was liable to the debtor for a joint and several liability pursuant to O.C.G.A. § 23-2-71 because plaintiff had shown that both parties were co-obligors on the debts of two creditors, that plaintiff had paid the entirety of the debts, and that defendant was liable for a contribution from defendant. Citrico Int'l, Ltd. v. Citrico, Inc. (In re Citrico Int'l, Ltd.), Bankr. (Bankr. N.D. Ga. Jan. 26, 2009).
Period of limitation applicable to an action for contribution based upon an implied contract is four years from the time the right of action accrues. Sherling v. Long, 122 Ga. 797, 50 S.E. 935 (1905); Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 177 S.E. 566 (1934).
Even after the dissolution of a partnership, the statute of limitations does not begin to run in favor of one partner against another until the partnership affairs, as to debtors and creditors of the firm, have been wound up and settled, or, at least, a sufficient time has elapsed since the dissolution to raise the presumption that such was the fact, nor, while there are outstanding assets and liabilities, will a partner be barred as against his copartner on the principle of stale demands. Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 177 S.E. 566 (1934).
Principle of contribution is equality in bearing a common burden. Eidson v. Maddox, 195 Ga. 641, 24 S.E.2d 895 (1943); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945); Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953).
Doctrine of contribution is not founded upon contract, but upon principles of equity, and assists in the fair and just division of losses, preventing unfairness and injustice. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).
Rule doctrine of contribution based on.
- The general rule is that one who is compelled to pay or satisfy the whole or to bear more than his just share of a common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares. Eidson v. Maddox, 195 Ga. 641, 24 S.E.2d 895 (1943); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).
Co-obligors on notes or other obligations for payment of money are equally bound, and must equally contribute to the discharge of such an obligation, and one of the joint makers who pays more than his share of the obligation may enforce contribution from any of his joint obligors who fails or refuses to discharge his aliquot proportion of the joint liability, but inequality of benefits or interest between co-obligors may destroy equality of contribution between them, and a variance between the amounts of their primary liability to the common creditor may have the same effect; thus, when the several co-obligors on a promissory note receive different amounts on account of the note, they are liable to contribute, not equally, but in proportion to the amount received by each of them. Davis v. Perkins, 178 Ga. 195, 172 S.E. 562 (1934).
Co-debtors and sureties distinguished.
- Cases interpreting O.C.G.A. § 23-2-71 distinguish between a co-debtor, who is entitled to contribution upon payment of the debt, and a surety, who is legally subrogated to the rights of the creditor and is entitled to sue on the original indebtedness upon payment of the debt. Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 600 S.E.2d 664 (2004).
A joint obligor is not subrogated in law to the rights of the creditors as against one's co-obligor for contribution. One merely has a right of contribution Sherling v. Long, 122 Ga. 797, 50 S.E. 935 (1905).
A continuance granted to one joint obligor enures to all. Medlock v. Wood, 4 Ga. App. 368, 61 S.E. 516 (1908).
Contribution among joint tort-feasors is enforceable when one has paid more than one's pro rata share of a judgment. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).
Doctrine of contribution can be applied against the insurer of a joint tort-feasor. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).
Indemnitor or insurer of one joint tort-feasor, upon discharging the common liability, succeeds to the right to recover contribution from other joint tort-feasors, or their indemnitors, or insurers. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).
Right of contribution extends equally to actions ex contractu and actions ex delicto, when all are equally bound to bear the common burden, and one has paid more than one's share. Southern Ry. v. City of Rome, 179 Ga. 449, 176 S.E. 7 (1934); City of Rome v. Southern Ry., 50 Ga. App. 185, 177 S.E. 520 (1934); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945); Goldhill v. Kramer, 122 Ga. App. 39, 176 S.E.2d 232 (1970).
Contribution unrestricted.
- The permission to have contribution "where all are equally bound to bear the common burden, and one has paid more than his share," is absolutely unrestricted. Southern Ry. v. City of Rome, 179 Ga. 449, 176 S.E. 7 (1934); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).
Contribution has been defined to be a payment made by each, or by any, or several having a common interest of liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others. It is the right of one who has discharged a common liability or burden to recover of another also liable the aliquot portion which he ought to pay or bear. Eidson v. Maddox, 195 Ga. 641, 24 S.E.2d 895 (1943).
In case of insolvency of a surety the solvent sureties must bear equally the burden of payment. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).
There is no authority which allows a cosurety to convert his action for contribution into something else merely by founding his action on the original evidence of indebtedness. It is still a suit to enforce contribution from cosureties, and plaintiff is bound by the substantive rules pertaining to contribution. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).
It is not some independent right but the right to contribution which is being enforced, and it is an action on the original evidence of indebtedness by way of subrogation to the creditor's remedy which is allowed to the surety merely as a form of action in aid of the right to contribution from cosureties. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).
Sureties' liability for contribution several and not joint.
- Since the substantive right and liability being enforced is that of contribution between co-obligors, each is liable only for an equal proportionate share of the debt. This liability is several and not joint, and a joint obligor who has paid the joint obligation is entitled to judgment against each of one's co-obligors only for the proportion for which each is liable; judgment should not be entered against any one of them or against all of them jointly for the aggregate amount due from them. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).
Surety cannot obtain a joint and general judgment against co-sureties for contributions.
- There is no authority for the proposition that a surety or other co-obligor, however one may find one's action for contribution, may obtain a joint and several judgment against one's several co-sureties for the aggregate amount due one. Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968).
Contribution limited to proportionate share of whole obligation.
- If there be several guarantors, some of whom have paid off the obligation, their right against the remaining guarantors, or persons secondarily liable, is only for contribution as to the proportionate share of the whole. Auerback v. Maslia, 142 Ga. App. 184, 235 S.E.2d 594 (1977).
When contribution against tort-feasors not available.
- Where separate judgments are entered against tort-feasors whose concurrent, independent negligence results in damage to the plaintiff's property, the verdict and judgment against each tort-feasor adjudicates the amount of his liability. In such circumstances there is no right of contribution between the tort-feasors. The right of contribution under the law is based upon one party bearing more than his share of "a common burden." Hardwick v. Georgia Power Co., 100 Ga. App. 38, 110 S.E.2d 24 (1959).
When contribution not available in partnership.
- When the business of a copartnership entails loss and when no part of the copartnership debts has been paid, no right of contribution arises, and no right to setoff partnership liabilities against a suit on a note by one of the partners against the other partners. Brinson v. Franklin, 177 Ga. 727, 171 S.E. 287 (1933).
Co-employee's liability for contribution to third party.
- The exclusive remedy provision of the Worker's Compensation Act, O.C.G.A. § 34-9-1 et seq., precludes a defendant in a personal injury action from asserting a third-party contribution claim against a co-employee of the plaintiff; reversing Brown v. Weller, 217 Ga. App. 67, 456 S.E.2d 602 (1995). Weller v. Brown, 266 Ga. 130, 464 S.E.2d 805 (1996).
Cited in Edge v. Edge, 62 Ga. 289 (1879); Neel v. Morris, 73 Ga. 406 (1884); Hall v. Harris, 6 Ga. App. 822, 65 S.E. 1086 (1909); Miller v. Jones, 136 Ga. 428, 71 S.E. 910 (1911); Ward v. Fleming, 18 Ga. App. 128, 88 S.E. 899 (1916); Watkins v. Woodbery, 24 Ga. App. 80, 100 S.E. 34 (1919); Walker v. Industrial Stores Co., 37 Ga. App. 448, 140 S.E. 519 (1927); Rome Ry. & Light Co. v. Southern Ry., 42 Ga. App. 786, 157 S.E. 527 (1931); Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505, 170 S.E. 504 (1933); Gazaway v. Nicholson, 190 Ga. 345, 9 S.E.2d 154 (1940); Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734 (1941); Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944); Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831, 134 S.E.2d 822 (1964); Whiddon v. Forshee, 228 Ga. 133, 184 S.E.2d 349 (1971); Chastain v. Simmons, 142 Ga. App. 615, 236 S.E.2d 678 (1977); Sturdivant v. Chapman, 146 Ga. App. 26, 245 S.E.2d 311 (1978); Rambo v. Cobb Bank & Trust Co., 146 Ga. App. 204, 245 S.E.2d 888 (1978); George R. Hall, Inc. v. Superior Trucking Co., 532 F. Supp. 985 (N.D. Ga. 1982); Hopkins v. Hopkins, 186 Ga. App. 530, 367 S.E.2d 825 (1988); Ragsdale v. Bank S. (In re Whitacre Sunbelt, Inc.), 206 Bankr. 1010 (Bankr. N.D. Ga. 1997); Gerschick v. Pounds, 262 Ga. App. 554, 586 S.E.2d 22 (2003).
RESEARCH REFERENCES
Am. Jur. 2d.
- 18 Am. Jur. 2d, Contribution, § 64 et seq.
C.J.S.- 18 C.J.S., Contribution, § 1 et seq.
ALR.
- Release of one of several joint or joint and several contract obligors as affecting liability of other obligors, 53 A.L.R. 1420.
Proportion of obligation enforceable by way of contribution between joint obligors, 64 A.L.R. 213.
Right of owner of property to maintain bill for accounting against lien holder or pledgee, 79 A.L.R. 201.
May acts of independent tort-feasors, each of which alone causes or tends to produce some damage, be combined to create a joint liability, 91 A.L.R. 759.
Judgment for plaintiff in action in tort or contract against codefendants, as conclusive in subsequent action between codefendants as to the liability of both or the liability of one and nonliability of the other, 101 A.L.R. 104; 142 A.L.R. 727.
Right as between employer primarily responsible under Workmen's Compensation Act and employer secondarily liable under that act (or their insurers) where injury was due to latter's negligence, 117 A.L.R. 571.
Cotenant's right to contribution in respect of taxes, improvements, or repairs as subject to reduction on account of rents and profits for which he is not otherwise responsible, 136 A.L.R. 1022.
Right of one cojudgment debtor who pays judgment to be subrogated thereto as against the other cojudgment debtors, 157 A.L.R. 495.
Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107.
Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.
Products liability: right of manufacturer or seller to contribution or indemnity from user of product causing injury or damage to third person, and vice versa, 28 A.L.R.3d 943.
Right of guarantor or surety, in order to avoid paying amount in excess of his proportionate share, to compel coguarantors or cosureties to pay their share to creditor, 38 A.L.R.3d 680.
Voluntary payment into court of judgment against one joint tort-feasor as release of others, 40 A.L.R.3d 1181.
Validity and effect of "loan receipt" agreement between injured party and one tort-feasor, for loan repayable to extent of injured party's recovery from a cotort-feasor, 62 A.L.R.3d 1111.
Propriety of direction of verdict in favor of fewer than all defendants at close of plaintiff's case, 82 A.L.R.3d 974.
Right of tort-feasor to contribution from joint tort-feasor who is spouse or otherwise in close familial relationship to injured party, 25 A.L.R.4th 1120.
Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.
Release of one joint tortfeasor as discharging liability of others under Uniform Contribution Among Tortfeasors Act and other statutes expressly governing effect of release, 6 A.L.R.5th 883.